New resources from the College offer alternative approaches to medical liability reform

Medical liability reform has been a legislative priority for the physician community, including organizations such as the American College of Surgeons (ACS), for decades. The present tort-based system for resolving liability claims is cumbersome and costly for both patients and providers and inhibits the efficient provision of care by encouraging defensive medicine.

Since its passage by the California state legislature in 1975, the Medical Injury Compensation Reform Act (MICRA) has been viewed as the gold standard against which all subsequent reform efforts have been measured.

Over the last decade, when Republicans have been in control of the House, the Speaker has typically reserved bill number H.R. 5 for the Help Efficient, Accessible, Low-Cost, Timely Healthcare (HEALTH) Act, which is modeled on MICRA, speaking to its importance to the Republican Party. Unfortunately, this bill was not introduced in the 113th Congress, which ended in January. The concept has never received significant support in the Democratic Caucus and has recently faced steeper opposition from some Republicans who claim tort reform should remain in the hands of policymakers at the state level. Consequently, despite fervent work in Washington, DC, to pass nationwide liability reform, this legislation has failed to cross the congressional finish line, and much of the legislative focus has turned to seeking enactment of MICRA-type laws at the state level.

ACS develops statement, primer

Noting the shrinking support for tort reform at the federal level and the growing evidence supporting the utility and effectiveness of some alternative reforms, the ACS Division of Advocacy and Health Policy (DAHP) and the ACS Legislative Committee took a comprehensive look at the history of medical liability reform and re-evaluated the current system. The Legislative Committee was created by the ACS Health Policy and Advocacy Group (HPAG) in 2010 and is responsible for identifying, evaluating, and recommending positions on federal legislation and policy issues with the potential to affect the needs, interests, and roles of surgeons and surgical patients that come before the U.S. Congress. The committee, composed of 10 volunteer members and currently chaired by Don J. Selzer, MD, FACS, has played a pivotal role in advising the DAHP on the merits of introduced or proposed legislation over the last five years. Medical liability reform represents the committee’s first major attempt at proactive policy development.

The College convened an ACS Medical Liability Reform Summit in October 2012, which led to the publication of a special issue of the Bulletin in March 2013 featuring 12 articles focused on new approaches to liability reform.1 The Legislative Committee formed a subcommittee that reviewed the existing resources available to Fellows and the College’s position on these alternatives. The subcommittee determined that additional materials should be developed to better inform Fellows of the current status of medical liability issues, highlight reform prospects, and provide them with a tool kit to navigate the liability arena. The group focused on reforms that accounted for current political realities and new evidence on the efficacy of alternative approaches.

The subcommittee members further noted that although the ACS has submitted testimony and statements to Congress regarding liability reform on many occasions, no official ACS statement had been adopted or released. The committee set to work crafting the statement that the Board of Regents approved at the 2014 Clinical Congress in San Francisco, CA. (See the Statement on Medical Liability Reform.)

Surgeons and Medical Liability primer

[A] new primer—Surgeons and Medical Liability: A Guide to Understanding Medical Liability Reform…explores the history and current state of our nation’s inefficient medical liability system and analyzes both traditional and alternative reform proposals.

In December 2014, the Legislative Committee released a new primer—Surgeons and Medical Liability: A Guide to Understanding Medical Liability Reform. This document explores the history and current state of our nation’s inefficient medical liability system and analyzes both traditional and alternative reform proposals. In addition to informing Fellows about ongoing challenges, the primer outlines opportunities for implementation of alternative reforms that have been proposed or studied at the local, state, and federal levels.

The primer is the product of months of effort by the ACS Legislative Committee, DAHP staff, and several research fellows and associates from the Harvard Medical School’s Program in Global Surgery and Social Change; it was overseen by former Legislative Committee Chair and current HPAG Vice-Chair John G. Meara, MD, DMD, MBA, FACS (a co-author of this article). John H. Armstrong, MD, FACS, Surgeon General of Florida, ACS Governor, and HPAG member, also contributed to the document, providing information on the context of reform at the national level. DAHP staff are using this resource to educate congressional offices about the hardships that the existing tort system creates for both patients and providers and to build support for reform on Capitol Hill. Reforms evaluated in the document include traditional tort reform packages such as the HEALTH Act; alternative dispute resolution; health courts; enterprise liability; safe harbors; and communication and resolution programs (CRPs), also known as “disclose and offer” programs. The results of the review are summarized in the table below, which is also available in the primer.

Merits and Viability of Existing System, Tort Reform, and Alternatives

Current system Tort reform Alternative dispute resolution Health courts Enterprise liability Safe harbors Communications and resolution programs
Cost control

X

✔︎

✔︎

✔︎

Just culture

X

✔︎

✔︎

✔︎

✔︎

Patient safety

X

✔︎

✔︎

Feasibility

✔︎

✔︎

Requires culture change

✔︎

✔︎

✔︎ = Reform improves the situation or is consistent with, or meets, a given criteria
X = Indicates a failure of the current system
Blank space indicates no direct or insufficient/inconclusive data

Best practices for the future

After a careful review of the available evidence, the ACS Legislative Committee and HPAG believe that CRPs show the most promise in controlling cost and promoting a culture of patient safety. These programs can be readily implemented without additional legislative action. Moreover, CRPs are in line with the ACS’ mission of improving care of the surgical patient, safeguarding standards of care, and creating an ethical practice environment. CRPs quickly compensate patients who are injured due to adverse events while vigorously defending quality care that, nevertheless, may have resulted in a poor outcome. In addition, lessons learned in the disclosure process reduce future claims and create an environment suitable for continuous quality improvement.

Implementing a CRP requires effort and institutional will. Typically administered at the hospital level, CRPs require a significant culture change for both hospital leadership and health care professionals. However, once introduced, CRPs have shown encouraging results across the country. Although CRPs do not require new legislation, political leaders could facilitate efforts to expand this type of reform through passage of clear and consistent apology laws and changes to the National Practitioner Data Bank reporting requirements.

Safe harbors, which protect physicians who follow accepted practice guidelines, also merit further study, as current supporting evidence for this alternative is small and equivocal. However, renewed interest in this type of reform at the federal level has emerged largely because of the introduction of bipartisan legislation in the 113th Congress. Reps. Andy Barr (R-KY), an attorney, and Ami Bera, MD (D-CA), a primary care physician, introduced the Saving Lives Saving Costs Act in February 2014.2 The bill combined elements of both safe harbors and pretrial screening panels.3 The ACS supported the legislation as a means of increasing bipartisan support for alternative reforms and has had ongoing conversations with the bill’s sponsors to help refine the legislation before it is reintroduced in the 114th Congress.

While certain reform proposals may seem more likely than others to achieve federal enactment, it is clear that the ACS should continue to support a variety of approaches. For example, traditional tort reform, recently “rescored” by the Congressional Budget Office to save the federal government as much as $70 billion over 10 years, must remain an area of continued interest.4 In addition, targeted reforms, such as Good Samaritan protections for physicians who volunteer across state lines or provide care mandated under the federal Emergency Medical Treatment and Active Labor Act should continue to be discussed.

More to come

The Surgeons and Medical Liability: A Guide to Understanding Medical Liability Reform primer and the ACS position statement represent two new tools that the College has developed to assist staff and Fellows as they advocate to improve the medical liability environment. We anticipate that they will serve as a spark to reignite efforts to improve fairness and efficiency in the liability system for physicians and patients alike. The primer is available on the ACS website.

The Legislative Committee will continue to address the issue of medical liability reform and will provide additional resources to Fellows in the coming months. Specifically, the committee plans to publish a practical guide for Fellows on medical liability issues. Topics that will be covered include how to avoid litigation, navigation of the pre-trial and discovery phase of a lawsuit, and what to expect in trial proceedings. At press time, this document was still in development and will require extensive legal review before it is ready for release to Fellows.


References

  1. American College of Surgeons. Special issue: New approaches to liability reform. March 2013. Available at: http://bulletin.facs.org/2013/03/. Accessed January 14, 2015.
  2. Library of Congress. Summary of H.R. 4106. Available at: www.congress.gov/bill/113th-congress/house-bill/4106?q=%7B%22search%22%3A%5B%22Saving+Lives+Saving+Cost%22%5D%7D. Accessed January 7, 2015.
  3. Congressman Andy Barr. H.R. 4106, The Saving Lives, Saving Costs Act. Available at: http://barr.house.gov/sites/barr.house.gov/files/Barr%20Bera%20HR%204106%20One%20Pager.pdf. Accessed January 7, 2015.
  4. Congressional Budget Office. Options for reducing the deficit: 2015 to 2024. Available at: www.cbo.gov/sites/default/files/cbofiles/attachments/49638-BudgetOptions.pdf. Accessed January 7, 2015.

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